No. 10-1491 In the Supreme Court of the United Statesconflictoflaws.net/News/2011/12/10-1491tsacUnitedStates.pdf · 2020. 3. 9. · no. 10-1491 in the supreme court of the united

No. 10-1491

In the Supreme Court of the United States

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OFHER LATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,

PETITIONERS

v.

ROYAL DUTCH PETROLEUM CO., ET AL.

ON WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATESAS AMICUS CURIAE SUPPORTING PETITIONERS

HAROLD HONGJU KOHLegal AdvisorDepartment of State Washington, D.C. 20520

CAMERON F. KERRYGeneral CounselDepartment of CommerceWashington, D.C. 20230

DONALD B. VERRILLI, JR.Solicitor General

Counsel of RecordTONY WEST

Assistant Attorney GeneralEDWIN S. KNEEDLER

Deputy Solicitor GeneralMELISSA ARBUS SHERRY

Assistant to the SolicitorGeneral

DOUGLAS N. LETTERROBERT M. LOEBMELISSA N. PATTERSON

Attorneys Department of JusticeWashington, D.C. [email protected](202) 514-2217

QUESTIONS PRESENTED

1. Whether the issue of corporate liability under theAlien Tort Statute (ATS), 28 U.S.C. 1350, is a meritsquestion or a question of subject-matter jurisdiction.

2. Whether a corporation can be held liable in afederal common law action brought under the ATS.

(I)

TABLE OF CONTENTSPage

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Summary of the argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8I. The issue of corporate liability in a federal common

law action based on the Alien Tort Statute does notimplicate the district court’s subject-matterjurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. A corporation can be held liable in a federal commonlaw suit based on the Alien Tort Statute for violatingthe law of nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12A. Whether a corporation may be held liable in

a suit based on the ATS should be determinedas a matter of federal common law . . . . . . . . . . . . . 15

B. Courts may recognize corporate liability asa matter of federal common law in actionsunder the ATS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TABLE OF AUTHORITIES

Cases:

Argentine Republic v. Amerada Hess ShippingCorp., 488 U.S. 428 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 22

Aziz v. Alcolac, Inc., 658 F.3d 388 (4th Cir. 2011) . . . . 11, 13

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Beaston v. Farmers’ Bank of Del., 37 U.S. (12 Pet.)102 (1838) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Bell v. Hood, 327 U.S. 678 (1946) . . . . . . . . . . . . . . . . . . . . 6, 9

(III)

IV

Cases—Continued: Page

Castellanos-Contreras v. Decatur Hotels, LLC,622 F.3d 393 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . 10

Chestnut Hill & Spring House Turnpike Co. v.Rutter, 4 Serg. & Rawle 6 (Pa. 1818) . . . . . . . . . . . . . . . 26

Cook County v. United States ex rel. Chandler,538 U.S. 119 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir.2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) . . . . 27

Flomo v. Firestone Natural Rubber Co., 643 F.3d1013 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 12, 19, 28

Gray v. Portland Bank, 3 Mass. (2 Tyng) 363 (1807) . . . . 26

Harmony v. United States (The Malek Adhel),43 U.S. (2 How.) 210 (1844) . . . . . . . . . . . . . . . . . . . . . . . 25

Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995),cert. denied, 518 U.S. 1005 (1996) . . . . . . . . . . . . . . . 17, 18

Mayor v. Turner, (1774) 98 Eng. Rep. 980 (K.B.) . . . . . . . 26

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) . . . . . . . . 13

Morrison v. National Australia Bank Ltd.,130 S. Ct. 2869 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

Philadelphia, Wilmington, & Balt. R.R. v. Quigley,62 U.S. (21 How.) 202 (1859) . . . . . . . . . . . . . . . . . . . . . . 26

Poresky, Ex parte, 290 U.S. 30 (1933) . . . . . . . . . . . . . . . . . . 9

Presbyterian Church of Sudan v. Talisman Energy,Inc., 582 F.3d 244 (2d Cir. 2009), cert. denied,131 S. Ct. 79 and 131 S. Ct. 122 (2010) . . . . . . . . . 5, 11, 13

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111(Pa. Oyer & Terminer 1784) . . . . . . . . . . . . . . . . . . . . . . 14

V

Cases—Continued: Page

Riddle v. Proprieters of the Locks, 7 Mass. (6 Tyng)168 (1810) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Romero v. Drummond Co., 552 F.3d 1303 (11th Cir.2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

Romero v. International Terminal Operating Co.,358 U.S. 354 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Samantar v. Yousuf, 130 S. Ct. 2278 (2010) . . . . . . . . . . . . 22

Sarei v. Rio Tinto, PLC:

487 F.3d 1193 (9th Cir. 2007), opinion withdrawnand superceded on reh’g en banc, 550 F.3d 822(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

No. 02-56256, 2011 WL 5041927 (9th Cir. Oct. 25,2011), petition for cert. pending, No. 11-649(filed Nov. 23, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 12, 20

Shell Petroleum N.V. v. Kiobel, 132 S. Ct. 248 (2011) . . . . 13

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) . . . . passim

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774(D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 23

Townsend v. Susquehanna Turnpike Co., 6 Johns. 90(N.Y. Sup. Ct. 1809) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Amedy, 24 U.S. (11 Wheat.) 392(1826) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

United States v. Stanley, 483 U.S. 669 (1987) . . . . . . . . . . 10

Yamaha Motor Corp., U.S.A. v. Calhoun,516 U.S. 199 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VI

Treaties and statutes: Page

Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment,adopted Dec. 10, 1984, S. Treaty Doc. No. 20,100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85 . . . . 17, 20

Convention Against Transnational Organized Crime,Nov. 15, 2000, S. Treaty Doc. No. 16, 108th Cong.,2d Sess. (2004), 2225 U.N.T.S. 209 . . . . . . . . . . . . . . . . . 31

Convention on Combating Bribery of Foreign PublicOfficials in International Business Transactions,Dec. 17, 1997, S. Treaty Doc. No. 43, 105th Cong.,2d Sess. (1998), 37 I.L.M. 1 (1998) . . . . . . . . . . . . . . . . . 31

Convention on the Prevention and Punishment ofthe Crime of Genocide, adopted Dec. 9, 1948,102 Stat. 3045, 78 U.N.T.S. 277 . . . . . . . . . . . . . . . . . 18, 20

Geneva Convention Relative to the Treatment ofPrisoners of War, Aug. 12, 1949, 6 U.S.T. 3316,75 U.N.T.S. 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 21

Rome Statute of the International Criminal Court,July 17, 1998, 2187 U.N.T.S. 90 . . . . . . . . . . . . . . . . . 28, 29

Act of Apr. 30, 1790, ch. 9, 1 Stat. 112:

§ 8, 1 Stat. 113-114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

§§ 25-26, 1 Stat. 117-118 . . . . . . . . . . . . . . . . . . . . . . . . . . 24

§ 28, 1 Stat. 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Alien Tort Statute, 28 U.S.C. 1350 . . . . . . . . . . . . . . . 1, 9, 22

Foreign Sovereign Immunities Act of 1976,28 U.S.C. 1330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Torture Victim Protection Act of 1991,Pub. L. No. 102-256, 106 Stat. 73 . . . . . . . . . . . . . . . . 3, 13

§ 2(a), 106 Stat. 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

VII

Statutes—Continued: Page

28 U.S.C. 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 8, 10, 11

Miscellaneous:

Arrest Warrant of 11 April 2000, Dem. Rep. Congo v.Belgium, 2002 I.C.J. 3 (Feb. 14) . . . . . . . . . . . . . . . . . . . 19

M. Cherif Bassiouni, Crimes Against Humanity inInternational Criminal Law (2d rev. ed. 1999) . . . . . . 31

1 William Blackstone, Commentaries on the Lawsof England (1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Jonathan A. Bush, The Prehistory of Corporationsand Conspiracy in Criminal Law: What Nurem-berg Really Said, 109 Colum. L. Rev. 1094 (2009) . . . . 30

William R. Casto, The Federal Courts’ ProtectiveJurisdiction Over Torts Committed In Violationof the Law of Nations, 18 Conn. L. Rev. 467 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

9A William M. Fletcher, Cyclopedia of the Law ofCorporations (2008 rev. ed.) . . . . . . . . . . . . . . . . . . . . . . 27

Louis Henkin, Foreign Affairs and the United StatesConstitution (2d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 18

H.R. Rep. No. 367, 102d Cong., 1st Sess. Pt. 1 (1991) . . . . 27

Diarmuid Jeffreys, Hell’s Cartel (2008) . . . . . . . . . . . . . . . 30

21 Journals of the Continental Congress 1774-1789(Gillard Hunt ed. 1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1 Stewart Kyd, A Treatise on the Law ofCorporations (1793) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1 Op. Att’y Gen. 57 (1795) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

1 Op. Att’y Gen. 71 (1797) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

26 Op. Att’y Gen. 250 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . 25

VIII

Miscellaneous—Continued: PageAnita Ramasastry & Robert C. Thompson,

Commerce, Crime and Conflict: Legal Remediesfor Private Sector Liability for Grave Breachesof International Law—A Survey of SixteenCountries—Executive Summary (2006),http://www.fafo.no/pub/rapp/536/536.pdf . . . . . . . . . . . . 29

1 Restatement (Third) of Foreign Relations Law (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

S. Rep. No. 249, 102d Cong., 1st Sess. (1991) . . . . . . . . . . . 27

18 State Dep’t Annual Hum. Rts. Rep. Submitted toCongress (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

19 State Dep’t Annual Hum. Rts. Rep. Submitted toCongress (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

20 State Dep’t Annual Hum. Rts. Rep. Submitted toCongress (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Nuremberg Trial (United States v. Goering),6 F.R.D. 69 (Int’l Military Trib. at Nuremberg1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

In the Supreme Court of the United States

No. 10-1491

ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF HERLATE HUSBAND, DR. BARINEM KIOBEL, ET AL.,

PETITIONERS

v.

ROYAL DUTCH PETROLEUM CO., ET AL.

ON WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATESAS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether a corpora-tion can be held liable in a federal common law actionbrought under the Alien Tort Statute (ATS), 28 U.S.C.1350. The United States has an interest in the properapplication of the ATS because such actions can haveimplications for the Nation’s foreign and commercialrelations and for the enforcement of international law.

STATEMENT

1. Petitioners are former residents of the Ogoni re-gion in Nigeria. Respondents are Dutch and Britishholding corporations that, through a Nigerian subsid-

(1)

2

iary, were engaged in oil exploration and production inthe Ogoni region.1 In 2002, petitioners filed a putativeclass action invoking the ATS. Petitioners alleged thatrespondents aided and abetted, or were otherwisecomplicit in, various human rights abuses by the Nige-rian government, including torture, cruel, inhuman, anddegrading treatment, arbitrary arrest and detention,crimes against humanity, property destruction, forcedexile, extrajudicial killings, and violations of the rightsto life, liberty, security, and association. Specifically,petitioners alleged that Nigerian military and policeforces killed, raped, and detained Ogoni residents, anddestroyed their property, and that respondents providedlogistical and financial support in connection with thoseactions. See Pet. App. A21-A23, A169-A173.2

2. Respondents moved to dismiss, arguing, interalia, that the operative complaint failed to state a viola-tion of the law of nations with the specificity required bySosa v. Alvarez-Machain, 542 U.S. 692, 731-734 (2004).Pet. App. B1-B3. The district court granted the motionin part and denied it in part. Id. at B1-B23. The courtfirst held that “where a cause of action for violation of aninternational norm is viable under the ATS, claims foraiding and abetting that violation are viable as well.” Id.at B12. Concluding that customary international law didnot define with sufficient particularity petitioners’claims for aiding and abetting property destruction,

1 The Nigerian subsidiary was dismissed from the suit for lack ofpersonal jurisdiction. Pet. App. A170.

2 State Department reports document a history of violent repressionof Ogoni residents by Nigerian security forces over the relevant timeperiod. See 18 State Dep’t Annual Hum. Rts. Rep. to Congress 214(1993); 19 State Dep’t Annual Hum. Rts. Rep. to Congress 190 (1994);20 State Dep’t Annual Hum. Rts. Rep. to Congress 197-198, 200 (1995).

3

forced exile, extrajudicial killing, or violation of therights to life, liberty, security, and association, the courtdismissed those claims. Id. at B13-B15, B20-B21. Thecourt, however, declined to dismiss petitioners’ claims ofaiding and abetting arbitrary arrest and detention,crimes against humanity, and torture. Id. at B16-B20.Respondents did not raise and the court did not decidewhether a corporation may be held liable in a suit underthe ATS. The court certified its order for interlocutoryappeal under 28 U.S.C. 1292(b). Pet. App. B21-B23.

3. The court of appeals granted both parties’ peti-tions for interlocutory appeal, and affirmed in part andreversed in part.

a. Petitioners argued that the district court erred indismissing their extrajudicial-killing claim; respondentsargued that the court erred in not dismissing the opera-tive complaint in its entirety. See Br. in Opp. App. 33a-34a, 38a n.6. Respondents’ primary contentions werethat “[n]o definite and uniformly agreed-upon norm ofthe law of nations” (id. at 49a) prohibited any of respon-dents’ alleged acts, and that respondents could not beheld liable for the acts of their corporate subsidiary.With respect to torture and extrajudicial killing, respon-dents also asserted that the claims were displaced by theTorture Victim Protection Act of 1991 (TVPA), Pub. L.No. 102-256, 106 Stat. 73, and that respondents were notstate actors. See Br. in Opp. App. 55a-57a, 60a-65a, 70a,71a-72a. Finally, in arguing that they could not be heldliable for the acts of their corporate subsidiary, respon-dents briefly asserted that the practices of internationalcriminal tribunals “suggest[] that the law of nations doesnot attach civil liability to corporations under any cir-cumstance.” Id. at 59a-60a; see id. at 138a n.31 (petition-

4

ers’ response on corporate liability); see also id. at 167an.1, 169a.

b. The panel majority did not address any of thegrounds relied on by the district court and fully briefedby the parties. Instead, the court chose to decide one ofseveral “unresolved issues lurking in [its] ATS juris-prudence”—whether “the jurisdiction granted by theATS extend[s] to civil actions brought against corpora-tions under the law of nations.” Pet. App. A7. The courtnoted that it had “decided ATS cases involving corpora-tions without addressing the issue of corporate liability,”but concluded that it was not bound by those decisionsbecause the issue was one of subject-matter jurisdiction.Id. at A24-A25.

The court’s analysis “proceed[ed] in two steps.” Pet.App. A25. The court first considered “which body of lawgoverns the question” and concluded that “internationallaw”—specifically, those “norms that are ‘specific, uni-versal, and obligatory’”—controls. Id. at A16, A25-A39.The court explained that the ATS “leaves the questionof the nature and scope of liability—who is liable forwhat—to customary international law,” id. at A18, andthat the “domestic law of the United States,” or of “anyother country,” is “entirely irrelevant,” id. at A9 & n.11.The court looked “to international law to determinewhether corporate liability for a ‘violation of the law ofnations’ is a norm ‘accepted by the civilized world anddefined with a specificity’ sufficient to provide a basisfor jurisdiction under the ATS.” Id. at A38 (citationsomitted).

Relying primarily on its assessment that “no corpo-ration has ever been subject to any form of liability un-der the customary international law of human rights,”Pet. App. A16, the court of appeals concluded that “cor-

5

porate liability has not attained a discernable, much lessuniversal, acceptance among nations of the world intheir relations inter se,” id. at A79-A80. Because peti-tioners’ claims were all asserted against corporations,the court ordered dismissal of the complaint “for lack ofsubject matter jurisdiction.” Id. at A81.

c. Judge Leval concurred only in the judgment. Pet.App. A82-A186. He agreed “that the place to look foranswers whether any set of facts constitutes a violationof international law is to international law,” id. at A137,but concluded that international law “leaves the mannerof enforcement * * * almost entirely to individual na-tions,” id. at A87. Judge Leval nevertheless agreed that“this Complaint must be dismissed,” because petitionershad not sufficiently alleged, as required by circuit prece-dent, that respondents aided and abetted customaryinternational-law violations “with a purpose to bringabout the Nigerian government’s alleged violations.” Id.at A90-A91; see id. at A168 (citing Presbyterian Churchof Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259(2d Cir. 2009), cert. denied, 131 S. Ct. 79 and 131 S. Ct.122 (2010) (Talisman)).

4. The court of appeals denied panel rehearing. Pet.App. D3-D10, D24-D25 (Jacobs and Cabranes, JJ., eachconcurring in denial); id. at D11-D23 (Leval, J., dissent-ing). Rehearing en banc was denied by an equally di-vided court. See id. at C3-C5 (Lynch and Katzmann,JJ., each dissenting from denial).

SUMMARY OF THE ARGUMENT

I. The court of appeals erred in characterizing thequestion whether a corporation can be held liable in afederal common law action based on the ATS as one ofsubject-matter jurisdiction. “[I]t is well settled that the

6

failure to state a proper cause of action calls for a judg-ment on the merits and not for a dismissal for want ofjurisdiction.” Bell v. Hood, 327 U.S. 678, 682 (1946).When an alien plaintiff alleges a nonfrivolous claim of atort in violation of the law of nations—as petitioners didhere—a district court has subject-matter jurisdictionunder the ATS.

The court of appeals nonetheless had jurisdictionunder 28 U.S.C. 1292(b) to decide the issue of corporateliability here. Although that issue was neither raised innor decided by the district court, it can be regarded asfairly included within the court’s certified order. As aprudential matter, the court should not have decidedthat issue on appeal. But because this Court has alreadygranted certiorari and the issue of corporate liabilitywill now be fully briefed, it would be appropriate for theCourt to decide that question rather than vacate andremand.

II. The merits question before this Court is narrow:whether a corporation can be held liable in a federalcommon law action based on the ATS. Although thereare a number of other issues in the background of thiscase (e.g., aiding-and-abetting liability, extraterritorial-ity, etc.), those issues were not decided by the court ofappeals here. This Court therefore should address onlythe corporate-liability issue. On that issue, the court ofappeals’ holding is categorical and applies to all suitsunder the ATS, regardless of the theory of liability, thelocus of the acts, the involvement of a foreign sovereign,or the character of the international-law norm at issue.

A. A corporation’s liability in a suit under the ATSdoes not depend on the existence of a generally acceptedand well-defined international law norm of corporateliability for law-of-nations violations. The particular

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limitation this Court found dispositive in Sosa v.Alvarez-Machain, 542 U.S. 692 (2004)—that any claimunder the ATS must at least “rest on a norm of interna-tional character accepted by the civilized world and de-fined with” sufficient “specificity,” id. at 725—pertainsto the international-law norm itself and not to whether(or how) that norm should be enforced in a suit underthe ATS. The latter question is a matter to be deter-mined by federal courts cautiously exercising their “re-sidual common law discretion.” Id. at 738. Internationallaw informs, but does not control, the exercise of thatdiscretion.

At the present time, the United States is not awareof any international-law norm of the sort identified inSosa that distinguishes between natural and juridicalpersons. Corporations (or agents acting on their be-half ) can violate those norms just as natural personscan. Whether corporations should be held accountablefor those violations in private tort suits under the ATSis a question of federal common law.

B. Courts may recognize corporate liability in ac-tions under the ATS as a matter of federal common law.The text and history of the ATS itself provide no basisfor distinguishing between natural and juridical persons.Corporations have been subject to suit for centuries, andthe concept of corporate liability is a well-settled part ofour “legal culture.” Pet. App. A8. Sosa’s cautionaryadmonitions provide no reason to depart from the com-mon law on this issue.

International law does not counsel otherwise. Al-though no international tribunal has been created forthe purpose of holding corporations civilly liable for vio-lations of international law, the same is true for naturalpersons. And while international criminal tribunals

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have, thus far, been limited to the prosecution of naturalpersons, that appears to be because of matters unique tocriminal punishment. Notably, several countries thathave incorporated international criminal offenses intotheir domestic law apply those offenses to corporations.

ARGUMENT

I. THE ISSUE OF CORPORATE LIABILITY IN A FEDERALCOMMON LAW ACTION BASED ON THE ALIEN TORTSTATUTE DOES NOT IMPLICATE THE DISTRICTCOURT’S SUBJECT-MATTER JURISDICTION

The court of appeals accepted the parties’ interlocu-tory appeal under 28 U.S.C. 1292(b), and ordered dis-missal of petitioners’ suit based on a legal theory (i.e.,that a corporation cannot be held liable in a common lawaction under the ATS) that was neither raised in nordecided by the district court. In justifying its decisionto do so, the court of appeals characterized the issue asone of subject-matter jurisdiction. Pet. App. A24-A25,A81. That was error, and the court should not have ad-dressed the corporate-liability question for the first timeon interlocutory appeal. Nonetheless, the appellatecourt had jurisdiction to decide the question of corporateliability and, in the current procedural posture, it wouldbe appropriate for this Court to decide it as well.

A. “Subject-matter jurisdiction * * * refers to atribunal’s power to hear a case.” Morrison v. NationalAustralia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (inter-nal quotation marks and citations omitted). The ques-tion of subject-matter jurisdiction is “quite separatefrom the question whether the allegations the plaintiffmakes entitle him to relief.” Ibid. “[I]t is well settledthat the failure to state a proper cause of action calls fora judgment on the merits and not for a dismissal for

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want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 682(1946). Unless the claim is so “plainly unsubstantial”that it falls outside the statutory grant of jurisdiction,failure to state a claim does not affect the court’s powerto hear a case. Ex parte Poresky, 290 U.S. 30, 32 (1933).

The ATS grants district courts “original jurisdiction”over “any civil action by an alien for a tort only, commit-ted in violation of the law of nations or a treaty of theUnited States.” 28 U.S.C. 1350. A district court wouldlack ATS jurisdiction over a claim brought by a U.S.citizen, or a claim that could not colorably constitute acognizable tort, or that was premised on an assertedlaw-of-nations violation that was plainly insubstantial.But so long as an alien plaintiff alleges a nonfrivolousclaim of a tort in violation of the law of nations, the dis-trict court has subject-matter jurisdiction under theATS. See Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1201(9th Cir. 2007), opinion withdrawn and superseded onreh’g en banc, 550 F.3d 822 (2008) (not addressing juris-dictional issue); cf. Doe v. Exxon Mobil Corp., 654 F.3d11, 40 (D.C. Cir. 2011) (declining to decide whether pre-Sosa circuit law settles jurisdictional question). But seeRomero v. Drummond Co., 552 F.3d 1303, 1315 (11thCir. 2008) (treating corporate liability as jurisdictionalunder ATS).

The argument that a corporation may be subject tosuit under the ATS is, at the very least, nonfrivolous. Adistrict court therefore does not lack jurisdiction over analien’s otherwise colorable tort claim alleging a law-of-nations violation simply because the defendant is a cor-poration.

B. Although the court of appeals erred in reachingthe corporate-liability issue on the premise that it wentto the district court’s subject-matter jurisdiction, it

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nonetheless appears that the court of appeals had juris-diction to decide that issue in this case.3 A district courtmay certify for interlocutory appeal an “orderinvolv[ing] a controlling question of law as to whichthere is substantial ground for difference of opinion,” if“immediate appeal from the order may materially ad-vance the ultimate termination of the litigation.”28 U.S.C. 1292(b). Although the court of appeals “maynot reach beyond the certified order to address otherorders made in the case,” it “may address any issuefairly included within the certified order because ‘it isthe order that is appealable, and not the controllingquestion identified by the district court.’ ” Yamaha Mo-tor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)(citation omitted); see United States v. Stanley, 483 U.S.669, 677 (1987).

Here, the district court certified its order granting inpart and denying in part respondents’ motion to dismiss.Although the order did not address the issue of corpo-rate liability (and respondents did not raise that issue),the denial of the motion to dismiss with respect to cer-tain claims (crimes against humanity, torture, and arbi-trary arrest and detention) could be understood as im-plicitly assuming that at least some law-of-nations viola-tions are actionable against a corporate defendant in asuit under the ATS. Because the issue of corporate lia-bility was to this extent “fairly included” within the cer-tified order, the court of appeals had jurisdiction to de-cide it. See Castellanos-Contreras v. Decatur Hotels,LLC, 622 F.3d 393, 398-399 (5th Cir. 2010) (en banc)(finding jurisdiction under Section 1292(b) to review

3 Petitioners argued to the contrary at the petition stage, Pet. 16 n.7;Reply Br. 5-6, but they do not renew that argument in their meritsbrief.

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“threshold question” not expressly decided by districtcourt, but implicit in its order and “material” to the or-der’s validity). Permitting a court of appeals to con-sider, in appropriate circumstances, a legal infirmityfairly included within the certified order, but unnoticedor unaddressed by the district court, could “materiallyadvance the ultimate termination of the litigation,”28 U.S.C. 1292(b).

C. To be sure, a court of appeals generally shouldnot consider a question not raised in or addressed by thedistrict court in the context of a Section 1292(b) interloc-utory appeal. But that is ultimately a matter of pru-dence, not jurisdiction. As a prudential matter, thecourt of appeals should have declined to decide whethera corporation can be held liable in a suit under the ATS.The Second Circuit had stayed its hand on that issue inseveral previous cases. See Pet. App. A7 n.10, A24-A25(citing cases); cf. Aziz v. Alcolac, Inc., 658 F.3d 388, 394n.6 (4th Cir. 2011) (declining to consider corporate-liability question on appeal from final judgment whennot raised in district court). And it is not evident thatthe panel in this case would have reached out to decidethe issue if the court had appreciated that the issue didnot go to the district court’s subject-matter jurisdiction.At the very least, the panel should not have done sowithout full briefing from the parties in this case. Seepp. 3-4, supra.4

4 The corporate-liability issue was raised in Talisman, supra, whichwas argued in the Second Circuit in tandem with this case, Br. in Opp.7 n.4. That issue was the subject of considerable discussion in the oralargument in this case, and was addressed in a post-argument letterbrief submitted in Talisman by petitioners’ counsel (who representedthe plaintiffs in both cases), Br. in Opp. App. 190a-206a.

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Although the court of appeals erred in characterizingthe issue of corporate liability as one of subject-matterjurisdiction under the ATS, and in addressing it in thefirst instance and without full briefing by the parties,those errors do not pose any practical obstacle to thisCourt’s review of the court of appeals’ extensive sub-stantive analysis. Because the Court has granted certio-rari and the issue will now be fully briefed by the par-ties, it would be appropriate to decide the corporate-liability issue rather than vacate and remand to thecourt of appeals. See Morrison, 130 S. Ct. at 2877 (de-clining to remand); Romero v. International TerminalOperating Co., 358 U.S. 354, 359, 381-384 (1959).5

II. A CORPORATION CAN BE HELD LIABLE IN A FED-ERAL COMMON LAW SUIT BASED ON THE ALIENTORT STATUTE FOR VIOLATING THE LAW OF NA-TIONS

The second question presented is whether a corpora-tion can be held liable in a suit under the ATS for violat-ing the law of nations. As the court of appeals recog-nized (Pet. App. A7), a number of other questions, un-answered by this Court, are implicated by this caseand other ATS cases. These include: whether or when

5 This Court may have granted certiorari in part to resolve adisagreement among the courts of appeals on the issue of corporateliability in suits based on the ATS. If the decision below were vacated,however, the present conflict would no longer exist. The Seventh,Ninth, Eleventh, and D.C. Circuits have all held that corporations canbe liable in tort for a violation of the law of nations under the ATS. Doe,654 F.3d at 39-57; Flomo v. Firestone Natural Rubber Co., 643 F.3d1013, 1017-1021 (7th Cir. 2011); Sarei v. Rio Tinto, PLC, No. 02-56256,2011 WL 5041927, at *6-*7, *19-*20, *24-*25 (9th Cir. Oct. 25, 2011),petition for cert. pending, No. 11-649 (filed Nov. 23, 2011); DrummondCo., 552 F.3d at 1315-1316.

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a cause of action should be recognized for theories ofsecondary liability such as aiding and abetting, see Aziz,658 F.3d at 395-401 (citing cases); whether or when acause of action should be recognized under U.S. commonlaw based on acts occurring in a foreign country, seeSosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004);and whether or when congressional legislation such asthe Torture Victim Protection Act of 1991 (TVPA),Pub. L. No. 102-256, 106 Stat. 73, should be taken intoaccount in determining the scope and content of commonlaw claims to be recognized under the ATS, cf. Milesv. Apex Marine Corp., 498 U.S. 19, 23-37 (1990). Thosequestions are important, but they were not decidedby the court of appeals in this case and should not beanswered by this Court here.6 And the holding on the

6 The court of appeals did not decide any of those issues in this case.See Pet. App. A7-A8 & n.10 (declining to address extraterritoriality);Br. in Opp. 30-35, 31 n.22 (suggesting respondents would raise alter-native grounds for affirmance). Although Judge Leval concurred in thejudgment because he believed the operative complaint should bedismissed for failure to sufficiently plead aiding-and-abetting liabilityunder Second Circuit precedent (Pet. App. A168-A185), the majoritydid not decide that question. Aiding-and-abetting liability was, how-ever, addressed by the Second Circuit in the Talisman case, which washeard in tandem with this case (see note 4, supra). The United Statesfiled a brief in Talisman addressing both extraterritoriality and aiding-and-abetting liability, and stating that its arguments were “equallyapplicable to the Kiobel district court’s determination that claims foraiding and abetting liability are available under the ATS.” U.S. Br. at5 n.1, Talisman, supra (No. 07-0016).

Respondents filed a conditional cross-petition for certiorari present-ing the question whether the TVPA has “displaced” certain claimsbrought under the ATS (namely, torture, cruel, inhuman, and degrad-ing treatment, and extrajudicial killing), but this Court denied that peti-tion. See Shell Petroleum N.V. v. Kiobel, cert. denied, 132 S. Ct. 248(2011) (No. 11-63). To the extent the Court wishes to address any of

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issue the court of appeals did decide—that a corporationmay not be held liable—is categorical and applies to allsuits under the ATS, regardless of the theory of liability,the locus of the acts, the involvement of a foreign sover-eign, or the character of the international-law norm atissue.

To isolate the consideration of the court of appeals’holding from those other issues, and to tie the corporate-liability issue to the origins of the ATS, consider (forexample) a civil suit brought by a foreign ambassadoragainst a U.S. corporation for wrongs committed againstthe ambassador by the corporation’s employees in theUnited States. Cf. Sosa, 542 U.S. at 716-717 (discussingassault on foreign ambassador to the United States inRespublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa.Oyer & Terminer 1784)).7 Or consider a suit against acorporation based on piracy committed by the corpora-tion’s employees. Cf. id. at 720, 724. Whether a federalcourt should recognize a cause of action in such circum-stances is a question of federal common law that, whileinformed by international law, is not controlled by it.

those questions, it should do so in a case where the issues have beendecided by the court of appeals—and only after full briefing. TheUnited States accordingly will address here only the corporate-liabilityquestion presented in this case.

7 Cf. 1 Op. Att’y Gen. 71, 73 (1797) (opining on prosecution ofnewspaper editor for libel of Spanish Ambassador and noting that “[a]naffront to an ambassador is just cause for national displeasure, and, ifoffered by an individual citizen, satisfaction is demandable of hisnation”).

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A. Whether A Corporation May Be Held Liable In A SuitBased On The ATS Should Be Determined As A MatterOf Federal Common Law

1. This Court explained in Sosa that, although theATS “is in terms only jurisdictional,” and does not cre-ate a statutory cause of action, “at the time of enact-ment” it “enabled federal courts to hear claims in a verylimited category defined by the law of nations and recog-nized at common law.” 542 U.S. at 712. At that time,the category encompassed “three primary offenses:violation of safe conducts, infringement of the rights ofambassadors, and piracy.” Id. at 724; see id. at 715, 720.Although the Court concluded that the door had notbeen closed “to further independent judicial recognitionof actionable international norms” dictated by “thepresent-day law of nations,” id. at 725, 729, it identifiedcertain cautionary factors to be considered in decidingwhether to recognize such a claim under federal commonlaw, id. at 725-728. The Court made clear, however, that“[w]hatever the ultimate criteria for accepting a cause ofaction subject to jurisdiction under [Section] 1350,” oneessential criterion is that “federal courts should not rec-ognize private claims under federal common law for vio-lations of any international law norm with less definitecontent and acceptance among civilized nations than[those] historical paradigms.” Id. at 732.8 Accordingly,“any claim based on the present-day law of nations”must at least “rest on a norm of international character

8 See Sosa, 542 U.S. at 733 n.21 (“This requirement of clear definitionis not meant to be the only principle limiting the availability of relief inthe federal courts for violations of customary international law.”); id. at738 n.30 (noting that the “demanding standard of definition” must firstbe met “to raise even the possibility of a private cause of action”).

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accepted by the civilized world and defined with a speci-ficity comparable to the features of th[ose] 18th-centuryparadigms.” Id. at 725.

2. Contrary to the court of appeals’ conclusion, indetermining whether a federal common law cause ofaction should be fashioned, courts are not required todetermine whether “corporate liability for a ‘violation ofthe law of nations’ is a norm ‘accepted by the civilizedworld and defined with a specificity ’ sufficient to providea basis for jurisdiction under the ATS.” Pet. App. A38(citation omitted). In so holding, the court of appealsconfused the threshold limitation identified in Sosa(which does require violation of an accepted and suffi-ciently defined substantive international-law norm) withthe question of how to enforce that norm in domestic law(which does not require an accepted and sufficiently de-fined practice of international law). That confusionstems in large part from the court’s misreading of foot-note 20 in the Sosa opinion.

In footnote 20, the Court explained that “[a] relatedconsideration”—i.e., a consideration related to “the de-termination whether a norm is sufficiently definite tosupport a cause of action”—“is whether internationallaw extends the scope of liability for a violation of agiven norm to the perpetrator being sued, if the defen-dant is a private actor such as a corporation or individ-ual.” Sosa, 542 U.S. at 732 & n.20. The Court then pro-ceeded to compare two cases exemplifying that “consid-eration.” The first was Judge Edwards’ concurringopinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d774, 791-795 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003(1985), in which he found (in this Court’s words) an “in-sufficient consensus in 1984 that torture by private ac-tors violates international law.” Sosa, 542 U.S. at 732

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n.20. The second was Kadic v. Karadžić, 70 F.3d 232,239-241 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996),in which the court found (again, in this Court’s words) a“sufficient consensus in 1995 that genocide by privateactors violates international law.” Sosa, 542 U.S. at 732n.20. In a concurring opinion, Justice Breyer summa-rized footnote 20 as requiring that “[t]he norm * * *extend liability to the type of perpetrator (e.g., a privateactor) the plaintiff seeks to sue.” Id. at 760.

From Sosa’s footnote 20, it is clear that “if the defen-dant is a private actor,” Sosa, 542 U.S. at 732 n.20 (em-phasis added), a court must consider whether privateactors are capable of violating the international-lawnorm at issue. The distinction between norms that applyonly to state actors and norms that also apply to non-state actors is well established in customary interna-tional law. Pet. App. A143 (explaining that “the distinc-tion between conduct that does and conduct that doesnot violate the law of nations can turn on whether theconduct is done by or on behalf of a State or by a privateactor independently of a State”).9 For example, the Tor-ture Convention defines “torture” as certain conductdone “by or at the instigation or with the consent or ac-quiescence of a public official or other person acting inan official capacity.” Convention Against Torture andOther Cruel, Inhuman or Degrading Treatment or Pun-ishment, art. 1, adopted Dec. 10, 1984, S. Treaty Doc.No. 20, 100th Cong., 2d Sess. 4 (1988), 1465 U.N.T.S. 85,113-114 (Torture Convention). In contrast, genocide andwar crimes do not require state involvement. See, e.g.,

9 Although the formal distinction in international law is betweennorms that require state action and norms that do not, this briefadheres to the Court’s terminology in Sosa and refers to “state actors”and “non-state actors” to describe that distinction.

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Convention on the Prevention and Punishment of theCrime of Genocide, art. II, adopted Dec. 9, 1948, 102Stat. 3045, 78 U.N.T.S. 277 (Genocide Convention);Geneva Convention Relative to the Treatment of Prison-ers of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 3318, 75U.N.T.S. 135, 136 (Common Article 3). Because certaininternational-law obligations do distinguish betweenstate actors and non-state actors, to identify an acceptedinternational-law norm with definite content for Sosapurposes, a court must conduct a norm-by-norm assess-ment to determine whether the actor being sued iswithin the scope of the identified norm.

The court of appeals, however, read Sosa’s footnote20 more broadly in two respects. First, it misread thedistinction between state actors and non-state actors—adistinction well recognized in international law—as abasis for drawing a distinction between natural and ju-ridical persons—one that finds no basis in the relevantnorms of international law. In fact, the footnote groupsall private actors together, referring to “a private actorsuch as a corporation or individual.” Sosa, 542 U.S. at732 n.20 (emphasis added). And, notably, the defendantin Kadic was a natural person, 70 F.3d at 236, whereasthe defendants in Tel-Oren were not, 726 F.2d at 775.

Second, the court of appeals misread footnote 20 torequire not just an international consensus regardingthe content of an international-law norm, but also aninternational consensus on how to enforce a violation ofthat norm. That reading reflects a misunderstanding ofinternational law which establishes the substantive stan-dards of conduct and generally leaves the means of en-forcing those substantive standards to each state. SeeLouis Henkin, Foreign Affairs and the United StatesConstitution 245 (2d ed. 1996) (“International law itself

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* * * does not require any particular reaction to viola-tions of law.”); Pet. App. A87 (Leval, J., concurring onlyin the judgment) (“[I]nternational law says little ornothing about how those norms should be enforced. Itleaves the manner of enforcement * * * almost en-tirely to individual nations.”); Flomo v. Firestone Natu-ral Rubber Co., 643 F.3d 1013, 1020 (7th Cir. 2011)(same); Doe, 654 F.3d at 41-42 (same). Once it is estab-lished that the international norm applies to conduct byan actor, it is largely up to each state to determine foritself whether and how that norm should be enforced inits domestic law.

That is not to say that international law is irrelevantto all questions of enforcement.10 And, as discussed inPart II.B.3, infra, international law informs the court’sexercise of its federal common law authority in deter-mining whether to recognize a cause of action to remedya violation of an international-law norm that otherwisemeets the Sosa threshold—and in deciding what thecontours of that cause of action should be. But that isa different task from satisfying Sosa’s threshold re-quirement of demonstrating the existence of an acceptedand well-defined substantive international law norm.Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,423 (1964) (“Although it is, of course, true that UnitedStates courts apply international law as part of our own

10 There are, for example, internationally accepted rules on jurisdic-tion and immunities and, in certain contexts, international law mayrequire certain minimum procedural standards. See, e.g., 1 Restate-ment (Third) of Foreign Relations Law §§ 421, 423 (1986) (internationallaw on jurisdiction to adjudicate); id. §§ 451-456 (international law onforeign sovereign immunity); Arrest Warrant of 11 April 2000, Dem.Rep. Congo v. Belgium, 2002 I.C.J. 3, 20-21 (Feb. 14) (head-of-stateimmunity).

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in appropriate circumstances, the public law of nationscan hardly dictate to a country which is in theorywronged how to treat that wrong within its domesticborders.”).

To satisfy Sosa, a plaintiff in an ATS suit must allegeconduct that violates a substantive norm of internationallaw accepted by civilized nations and defined with therequisite degree of specificity. To the extent that sub-stantive norm is defined in part by the identity of theperpetrator, then the defendant must fall within thatdefinition. Similarly, if the substantive norm is definedin part by the identity of the victim or the locus ofevents, then conduct committed against a different vic-tim or in a different locale could not violate that normand a suit under the ATS could not stand. See Sarei v.Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *43(9th Cir. Oct. 25, 2011) (McKeown, J., concurring in partand dissenting in part) (“[T]he handful of internationallaw violations that may give rise to an ATS claim areoften restricted by the identity of the perpetrator, theidentity of the victim, or the locus of events.”), petitionfor cert. pending, No. 11-649 (filed Nov. 23, 2011).

3. At the present time, the United States is notaware of any international-law norm, accepted by civi-lized nations and defined with the degree of specificityrequired by Sosa, that requires, or necessarily contem-plates, a distinction between natural and juridical ac-tors. See, e.g., Torture Convention art. 1 (defining “tor-ture” to include “any act by which severe pain or suffer-ing * * * is intentionally inflicted on a person” for cer-tain reasons, “by or at the instigation of or with the con-sent or acquiescence of a public official or other personacting in an official capacity”) (emphasis added); Geno-cide Convention art. 2 (defining genocide to include “any

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of the following acts” committed with intent to destroya group, without regard to the identity of the perpe-trator); Common Article 3 (prohibiting “the followingacts,” without regard to the identity of the perpetra-tor). Both natural persons and corporations can violateinternational-law norms that require state action. Andboth natural persons and corporations can violateinternational-law norms that do not require state action.The court of appeals examined the question of corporateliability in the abstract, and therefore did not addresswhether any of the particular international-law normsidentified by petitioners (or recognized by the districtcourt as satisfying Sosa’s “demanding” standard, 542U.S. at 738 n.30) exclude corporations from their scope.Because corporations (or agents acting on their behalf )can violate the types of international-law norms identi-fied in Sosa to the same extent as natural persons, thequestion becomes whether or how corporations shouldbe held accountable as a matter of federal common lawfor violations that are otherwise actionable in privatetort suits for damages under the ATS.11

11 This is plainly true when the theory of corporate liability ispremised on respondeat superior and the responsible agent is a naturalperson. As the D.C. Circuit explained, in those circumstances agencylaw simply determines who will be held financially responsible for theinjury inflicted by the agent. See Doe, 654 F.3d at 41, 51. But it is alsotrue for a theory of direct corporate liability, because corporations arethemselves capable of violating norms of customary international lawof the sort described in Sosa—or at least the United States maypermissibly recognize them to be capable of doing so. Although peti-tioners have not yet identified the precise theory of corporate liabilityon which they intend to proceed, the court of appeals erroneouslyrejected the concept of corporate liability in a suit under the ATS as acategorical matter. Cf. Pet. App. A77 n.51 (noting different standardsof corporate liability). To the extent different theories of corporate

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B. Courts May Recognize Corporate Liability As A MatterOf Federal Common Law In Actions Under The ATS

This Court has instructed courts to act as “vigilantdoorkeep[ers],” Sosa, 542 U.S. at 729, and to exercise“great caution” before “adapting the law of nations toprivate rights,” id. at 728. Such restraint, however, doesnot justify a categorical exclusion of corporations fromcivil liability under the ATS.

1. The text of the ATS does not support the court ofappeals’ categorical bar. To the contrary, whereas theATS clearly limits the class of plaintiffs to aliens,28 U.S.C. 1350, it “does not distinguish among classesof defendants,” Argentine Republic v. Amerada HessShipping Corp., 488 U.S. 428, 438 (1989).12

The historical context supports the different textualtreatment of ATS plaintiffs and defendants. As ex-plained in Sosa, the ATS was passed by the First Con-gress in 1789, after the well-documented inability of theContinental Congress to provide redress for violationsof treaties and the laws of nations for which the UnitedStates might be held accountable. See 542 U.S. at 715-717. The Continental Congress had “implored theStates to vindicate rights under the law of nations,” butonly one State acted on that recommendation. Id. at716. Notably, although that resolution “dealt primarilywith criminal sanctions,” William R. Casto, The Federal

liability could raise distinct questions as to how a court should exerciseits “residual common law discretion,” Sosa, 542 U.S. at 738, that is amatter better addressed on remand.

12 The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1330,would bar a suit against a foreign state, Amerada Hess Shipping Corp.,488 U.S. at 436-438, and other immunities may apply in suits againstother defendants, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2292-2293(2010).

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Courts’ Protective Jurisdiction Over Torts CommittedIn Violation of the Law of Nations, 18 Conn. L. Rev.467, 491 (1986) (Casto), the Continental Congress tookthe further step of recommending that the States alsomake available suits for damages, 21 Journals of theContinental Congress 1774-1789, at 1136-1137 (GillardHunt ed. 1912) (Continental Congress). And, indeed, theresolution provided that while it might at times be nec-essary “to repair out of the public treasury” to compen-sate for injuries caused by individuals, “the author ofthose injuries” should ultimately “compensate the dam-age out of his private fortune.” Continental Congress1136.

Events like the “so-called Marbois incident of May1784”—“in which a French adventurer, De Longchamps,verbally and physically assaulted the Secretary of theFrench [Legation] in Philadelphia”—exposed the inabil-ity of the national government to redress law-of-nationsviolations. Sosa, 542 U.S. at 716-717; Casto 491-492 &n.138. A “reprise of the Marbois affair,” Sosa, 542 U.S.at 717, occurred in 1787, during the Constitutional Con-vention, when a New York City constable entered theresidence of a Dutch diplomat with a warrant for thearrest of one of his domestic servants. Casto 494. And,again, the “national government was powerless to act.”Ibid.

From this history, the Sosa Court concluded that theFirst Congress intended the ATS to afford aliens a fed-eral forum in which to obtain redress for the “relativelymodest set of actions alleging violations of the law ofnations” at the time. 542 U.S. at 720; see id. at 724 (not-ing importance of “private remedy”); see Tel-Oren, 726F.2d at 782 (Edwards, J., concurring) (detailing evi-dence that the intent of the ATS “was to assure aliens

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access to federal courts to vindicate any incident which,if mishandled by a state court, might blossom into aninternational crisis”). Consistent with the recommenda-tions of the Continental Congress, the First Congressboth criminalized certain law-of-nations violations (pi-racy, violation of safe conducts, and infringements onthe rights of ambassadors), see Act of Apr. 30, 1970,ch. 9, § 8, 1 Stat. 113-114 (1790 Act); id. § 28, 1 Stat. 118,and in the ATS provided jurisdiction over actions byaliens seeking civil remedies.

As the D.C. Circuit recently explained, there is nogood “reason to conclude that the First Congress wassupremely concerned with the risk that natural personswould cause the United States to be drawn into foreignentanglements, but was content to allow formal legalassociations of individuals, i.e., corporations, to do so.”Doe, 654 F.3d at 47. Given the apparent intent to pro-vide compensation to the injured party through a civildamages remedy in a federal forum (rather than simplyaddress the international affront through criminal pros-ecution or diplomatic channels), there is also no goodreason to conclude that the First Congress would havewanted to allow the suit to proceed only against the po-tentially judgment-proof individual actor, and to barrecovery against the company on whose behalf he wasacting. Take, for example, the 1787 incident involvingthe Dutch diplomat. If entry were made into his resi-dence by the agent of a private process service companyfor the purpose of serving a summons on the diplomat,the international affront might equally call for vindica-tion (and compensation) through a private suit againstthat company. Cf. 1790 Act, §§ 25-26, 1 Stat. 117-118(providing that “any writ or process” that is “sued forthor prosecuted by any person” against an ambassador or

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“domestic servant” of an ambassador shall be punishedcriminally and would constitute a violation of “the lawsof nations”).13 And later, in opining on a boundary dis-pute over the diversion of waters from the Rio Grande,Attorney General Bonaparte stated that citizens of Mex-ico would have a right of action under the ATS againstthe “Irrigation Company.” 26 Op. Att’y Gen. 250, 251(1907).14

2. More generally, the proposition that corporationsare “deemed persons” for “civil purposes,” and can beheld civilly liable, has long been recognized as “unques-tionable.” United States v. Amedy, 24 U.S. (11 Wheat.)392, 412 (1826); see Beaston v. Farmers’ Bank of Del., 37U.S. (12 Pet.) 102, 134 (1838). Corporations are capableof “suing and being sued.” 1 Stewart Kyd, A Treatise onthe Law of Corporations 13 (1793); see 1 WilliamBlackstone, Commentaries on the Laws of England 463(1765) (corporations may “sue or be sued * * * and doall other acts as natural persons may”); Cook County v.United States ex rel. Chandler, 538 U.S. 119, 125 (2003)

13 The incident discussed by Attorney General Bradford in his 1795opinion, in which U.S. citizens had “taken part in the French plunder ofa British slave colony in Sierra Leone,” Sosa, 542 U.S. at 721, providesanother useful analogue. See 1 Op. Att’y. Gen. 57, 59. The AttorneyGeneral there opined that, although the federal government could notcriminally prosecute the Americans, there was “no doubt that thecompany or individuals” injured could sue under the ATS. Ibid. Itseems unlikely that Congress would have intended federal courts to becategorically barred from considering a suit against a U.S. corporationon whose behalf the individuals acted.

14 In cases of piracy, legal responsibility was not limited to naturalpersons. “The vessel which commit[ted] the aggression [wa]s treatedas the offender,” and was subject to forfeiture. Harmony v. UnitedStates (The Malek Adhel), 43 U.S. (2 How.) 210, 233 (1844).

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(detailing “common understanding” that corporationshave long had the “capacity to sue and be sued”).15

As particularly relevant here, corporations were ca-pable of being sued in tort. This Court has explainedthat, “[a]t a very early period, it was decided in GreatBritain, as well as in the United States, that actionsmight be maintained against corporations for torts; andinstances may be found, in the judicial annals of bothcountries, of suits for torts arising from the acts of theiragents, of nearly every variety.” Philadelphia, Wil-mington, & Balt. R.R. v. Quigley, 62 U.S. (21 How.) 202,210-211 (1859); see Chestnut Hill & Spring House Turn-pike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818)(“[F]rom the earliest times to the present, corpora-tions have been held liable for torts.”). In 1774, for ex-ample, Lord Mansfield’s opinion for the Court of King’sBench held that a corporation could be held liable indamages for failing to repair a creek that its actions hadrendered unnavigable. See Mayor v. Turner, (1774)98 Eng. Rep. 980. Early American courts followed suit.See, e.g., Chestnut Hill, 4 Serg. & Rawle at 17; Gray v.Portland Bank, 3 Mass. (2 Tyng) 363 (1807); Riddle v.Proprieters of the Locks, 7 Mass. (6 Tyng) 168 (1810);Townsend v. Susquehanna Turnpike Co., 6 Johns. 90(N.Y. Sup. Ct. 1809).

Holding corporations liable in tort for violations ofthe law of nations of the sort otherwise actionable in afederal common law action based on the ATS is thusconsistent with the common law backdrop against whichthe ATS was enacted and subsequently amended. Aseven the Second Circuit recognized, this Nation’s “legal

15 See also Amedy, 24 U.S. (11 Wheat.) at 412 (interpreting “person”in 1801 criminal statute to include corporations).

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culture” has “long” grown “accustomed” to imposingtort liability on corporations. Pet. App. A8-A9; see Doe,654 F.3d at 48 (“The general rule of substantive law isthat corporations, like individuals, are liable for theirtorts.”) (citation omitted); 9A William M. Fletcher,Cyclopedia of the Law of Corporations § 4521 (2008 rev.ed.) (discussing tort suits against corporations). And theSosa Court’s cautionary admonitions provide no reasonto depart from the common law on this issue.16

3. International law does not counsel otherwise. Asdiscussed (see Part II.A, supra), international law doesnot dictate a court’s decision whether to recognize, andhow to define, a federal common law cause of action toenforce a law-of-nations violation of the sort deemed

16 In Mohamad v. Palestinian Authority, No. 11-88 (oral argumentscheduled for Feb. 28, 2012), the Court has granted certiorari to decidewhether the TVPA permits actions against organizations as well asnatural persons, and ordered the case to be heard in tandem with thiscase. If the Court concludes that acts of torture and extrajudicial kill-ing can be brought under the TVPA only against natural persons, thatwould not support a categorical rejection of corporate liability under theATS. The TVPA was enacted to furnish a clear statutory cause ofaction for torture and extrajudicial killing under color of law of a foreignnation, in light of uncertainty concerning application of the ATS as aresult of Judge Bork’s opinion in Tel-Oren, which disagreed with theSecond Circuit’s decision in Filartiga v. Pena-Irala, 630 F.2d 876(1980). See H.R. Rep. No. 367, 102d Cong., 1st Sess. Pt. 1, at 2-4 (1991);S. Rep. No. 249, 102d Cong., 1st Sess. 3-5 (1991); see also Sosa, 542 U.S.at 728, 731. The TVPA is distinct from the ATS in several respects.Most significantly, whereas the text of the ATS is silent as to theidentity of the defendant, the TVPA confers a private right of actionagainst an “individual.” § 2(a), 106 Stat. 73. Moreover, whereas theTVPA itself provides a statutory cause of action only for certain actsunder color of law of a “foreign nation,” ibid., the ATS was enacted toconfer federal court jurisdiction and does not specify the law-of-nationsviolations that may be actionable.

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potentially actionable under Sosa. But to the extentinternational law does speak to an issue, it should informthe court’s exercise of its residual common law discre-tion. Here, nothing in international law counsels in fa-vor of the Second Circuit’s categorical bar to corporateliability.

The court of appeals relied heavily on its understand-ing that “no corporation has ever been subject to anyform of liability under the customary international lawof human rights.” Pet. App. A16. But, even if correct,the court of appeals drew the wrong conclusion fromthat observation.

First, each international tribunal is specially negoti-ated, and limitations are placed on the jurisdiction ofsuch tribunals that may be unrelated to the reach of sub-stantive international law. See, e.g., Rome Statute ofthe International Criminal Court, July 17, 1998, 2187U.N.T.S. 90, art. 10 (Rome Statute) (“Nothing in thisPart shall be interpreted as limiting or prejudicing inany way existing or developing rules of international lawfor purposes other than this Statute.”). Thus, the factthat no international tribunal has been created for thepurpose of holding corporations civilly liable for viola-tions of international law does not contribute to the anal-ysis, because the same is true for natural persons.17 Cf.Pet. App. A141 (“If the absence of widespread agree-ment in the world as to civil liability bars imposing lia-bility on corporations, it bars imposing liability on natu-ral persons as well.”); Flomo, 643 F.3d at 1019 (“If aplaintiff had to show that civil liability for such violationswas itself a norm of international law, no claims under

17 Some international criminal tribunals authorize reparations tovictims. See, e.g., Rome Statute art. 75.

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the [ATS] could ever be successful, even claims againstindividuals.”).

Second, the reason why the jurisdiction of interna-tional criminal tribunals has thus far been limited tonatural persons (see Pet. App. A51-A54) appears to bebecause of certain features unique to criminal punish-ment. That limitation is not indicative of a general pro-hibition against holding corporations (as compared tonatural persons) accountable for violations of interna-tional law. See Pet. App. A165-A166 (Leval, J., concur-ring only in the judgment) (“[I]nternational tribunalswithhold criminal liability from juridical entities for rea-sons that have nothing to do with whether they violatedthe conduct norms of international law.”); id. at A119-A127. For example, the Rome Statute, which estab-lished the International Criminal Court (ICC), wasbased on the principle of complementarity. Rome Stat-ute preamble ¶ 10. The ICC was to assume criminaljurisdiction only when national courts were unable (orunwilling) to genuinely investigate or prosecute certaininternational crimes. See Rome Statute art. 17. Be-cause many foreign states do not criminally prosecutecorporations under their domestic law for any offense,see Pet. App. A123-A124, extending the ICC’s criminaljurisdiction to include corporations would have renderedcomplementarity unworkable. Notably, however, sev-eral countries (including the United Kingdom and theNetherlands) that have incorporated the Rome Statute’sthree crimes (genocide, crimes against humanity, andwar crimes) into their domestic jurisprudence them-selves impose criminal liability on corporations andother legal persons for such offenses. See Anita Rama-sastry & Robert C. Thompson, Commerce, Crime andConflict: Legal Remedies for Private Sector Liability

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for Grave Breaches of International Law—A Survey ofSixteen Countries—Executive Summary 13-16, 30(2006), http://www.fafo.no/pub/rapp/536/536.pdf.

With respect to Nuremberg in particular, while it istrue that no private organization or corporation wascriminally charged or convicted, it is equally true thatnothing in the history of the Nuremberg proceedingssuggests that juridical persons could never be held ac-countable (through criminal prosecution or otherwise)for violating international law. See Jonathan A. Bush,The Prehistory of Corporations and Conspiracy inCriminal Law: What Nuremberg Really Said, 109Colum. L. Rev. 1094, 1239 (2009) (noting that corporateliability was “explored, and was never rejected as legallyunsound,” and that corporations were not prosecuted atNuremberg “not because of any legal determination thatit was impermissible under international law”); cf.Diarmuid Jeffreys, Hell’s Cartel 405-406 (2008) (notingthat German court in subsequent suit, apparentlybrought under German law, held that “[t]he fundamentalprinciples of equality, justice, and humanity must havebeen known to all civilized persons, and the [I.G. Farbenchemical company in its current liquidated form] cannotevade its responsibility any more than can an individ-ual”).18

18 The International Military Tribunal’s statement that “[c]rimesagainst international law are committed by men, not by abstractentities, and only by punishing individuals who commit such crimes canthe provisions of international law be enforced,” see Pet. App. A12, A50(quoting The Nuremberg Trial (United States v. Goering), 6 F.R.D. 69,110 (Int’l Military Trib. at Nuremberg 1946)), has been taken out ofcontext. The Tribunal clearly was rejecting the defendant’s argumentthat only a state could be held liable for violations of international law;it was not making any distinction among actors other than the state.

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Third, international tribunals are not the sole (oreven the primary) means of enforcing international-lawnorms. Until the twentieth century, domestic law anddomestic courts were the primary means of implement-ing customary international law. And holding corpora-tions accountable if they violate the law of nations is con-sistent with international law. Today, a number of inter-national agreements (including some that the UnitedStates has ratified) require states parties to imposeliability on corporations for certain actions. See, e.g.,Convention Against Transnational Organized Crime,art. 10(1), Nov. 15, 2000, S. Treaty Doc. No. 16, 108thCong., 2d Sess. (2004), 2225 U.N.T.S. 209; Convention onCombating Bribery of Foreign Public Officials in Inter-national Business Transactions, art. 2, Dec. 17, 1997,S. Treaty Doc. No. 43, 105th Cong., 2d Sess. (1998),37 I.L.M. 1 (1998); see also, e.g., Doe, 654 F.3d at 48-49& n.35. As the Chairman of the Rome Statute’s DraftingCommittee explained, “all positions now accept in someform or another the principle that a legal entity, privateor public, can, through its policies or actions, transgressa norm for which the law, whether national or interna-tional, provides, at the very least damages * * * andother remedies such as seizure and forfeiture of assets.”M. Cherif Bassiouni, Crimes Against Humanity in In-ternational Criminal Law 379 (2d rev. ed. 1999).

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CONCLUSION

The judgment of the court of appeals should be re-versed.

Respectfully submitted.

HAROLD HONGJU KOHLegal AdvisorDepartment of State

CAMERON F. KERRYGeneral CounselDepartment of Commerce

DONALD B. VERRILLI, JR.Solicitor General

TONY WESTAssistant Attorney General

EDWIN S. KNEEDLERDeputy Solicitor General

MELISSA ARBUS SHERRYAssistant to the Solicitor

GeneralDOUGLAS N. LETTERROBERT M. LOEBMELISSA N. PATTERSON

Attorneys

DECEMBER 2011